Is It Already 'Too Late' for Justice Ginsburg to Retire?

By William Peacock, Esq. on July 25, 2014 2:59 PM

Many liberals want Justice Ruth Bader Ginsburg to retire immediately, despite her status as a liberal lion and the leader of the "left" side of the bench. Conservatives want her to stick around, again, despite her political leanings and even though she's shown no signs of slowing down whatsoever.

Why? Everybody is worried about Ginsburg's potential replacement. If she retires while President Barack Obama is in office, and before this year's midterms, there's a good chance she'll be replaced with a like-minded judge, leaving the 4-4-Kennedy split. Republicans, obviously, would prefer that she hold out, hoping that 2016 brings a conservative to White House (and one to her seat as well).

We've said it before, and so has Justice Ginsburg: As long as she's able, she's not planning to step aside for anyone. But an interesting article in The Daily Beast argues that it's already too late -- a filibuster would block a liberal replacement anyway.

Midterms, Schmidterms: It's Too Late

In a very interesting article, journalist Jeff Greenfield (who's also a Yale Law School grad) recaps the history of blocked and opposed nominations, including this interesting statistic: From 1894 to 1967, only one Supreme Court nominee was rejected. Since then, however, it's become a semi-regular thing: Fortas, Haynesworth, Carswell, Bork, and the close call of Justice Clarence Thomas.

But today? Today, it'd be even worse, he argues. The "nuclear option" that removed filibusters from judicial confirmations doesn't apply to Supreme Court justices. And with partisan gridlock and Tea Party politics, what Republican wouldn't join a party-wide filibuster of a nomination, risking a Tea Party primary challenge in the process?

It's because of this that Greenfield argues President Obama will be unable to appoint any more Supreme Court justices -- no matter whether it's zero, one, or multiple vacancies that arise in the next couple of years.

While we'd be inclined to agree that a filibuster would block any nominations this summer, we're not so sure it'd last up to two years. Sure, partisan gridlock has shut down the government completely in recent times, but if Republicans hope to have any shot at a successful 2016 election, they can't be seen as "those guys who block everything and left the Supreme Court shorthanded to game the system."

A few months of filibuster? Sure. Filibuster until a compromise candidate is nominated? Also possible. But leaving the Court with eight or seven justices for a year or two? That seems unlikely, though maybe I'm underestimating our politicians' level of crazy.

Should She Stay or Should She Go?

Did anyone see any signs of slippage this term by Justice Ruth Bader Ginsburg? We thought so -- she was just as much of a pain in the majority's side as always.

Personally, I'm hoping she sticks around for a long, long while -- maybe even forever. I'm picturing something like this:

Categories:

About U.S. Supreme Court

U.S. Supreme Court features general news and information from the Supreme Court of the United States, as well as news that would be of interest to legal professionals practicing before the Supreme Court. Have a comment or tip? Write to us.